If you haven’t been living under a rock for the past month,
you’re probably aware that the U.S. Senate recently passed a healthcare reform
bill. The bill’s key provisions include barring insurers from refusing or
dropping coverage based on a pre-existing medical condition, requiring
individuals to purchase health insurance, or face a fine, expanding Medicaid
eligibility and providing subsidies for those who cannot afford it, creating
health insurance exchanges, designed to create a low-cost option for health
insurance.
All of these provisions have been extremely controversial,
with supporters arguing that it will reduce costs of health insurance, and make
coverage available to millions of Americans who are currently uninsured, and
that a healthier population will, in the long run, have economic benefits which
more than offset the initial costs.
Opponents argue that the plan will necessitate tax
increases, create too much government involvement in highly personal medical
decisions, reduce the overall quality of care, and do little, if anything, to
control rising costs of health care.
Another argument that has recently gained traction among the
mainstream opponents of the healthcare reform bill is that certain provisions
are unconstitutional.
Initially, the constitutional argument focused on the
“individual mandate” – the requirement that everyone obtain health insurance. The
constitutional argument stems from the fact that the federal government has
constitutionally-limited power. Basically, Congress can only do that which the
constitution specifically authorizes it to do. Of course, one could look at the
mind-bogglingly enormous body of federal law, and look for corresponding
explicit grants of authority in the constitution, and, in the vast majority of
instances, find none. This is because the U.S. Supreme Court has interpreted
certain congressional powers extremely broadly.
Most relevant here is the so-called “commerce clause”, which
allows Congress to regulate commerce between the states, and with foreign
countries. In the past several decades, the Supreme Court has greatly broadened
the meaning of the Commerce Clause to cover virtually any activity that affects interstate commerce. For
example, in one case, Wickard v. Filburn
(1942), the Supreme Court ruled that the commerce clause allowed the federal
government to prohibit an individual from growing wheat in his backyard,
because, by growing wheat instead of buying it, he affected the market price of
wheat, which was a matter of concern across the country, thus allowing Congress
to regulate his conduct under the commerce clause.
That precedent has not been overturned, and has in fact been
reaffirmed as recently as 2005, when, in the case of Gonzales v. Raich, the Supreme Court used roughly the same
reasoning to uphold the federal ban on growing marijuana.
A good case could be made that, based on current precedent,
the individual mandate is constitutional. On the other hand some prominent
legal scholars would beg to differ, arguing that the delivery of medical
services occurs in one place, and does not cross state lines. Of course, this
argument appears to ignore the case of Katzenbach v. McClung, which raised the question of the
constitutionality of the 1964 Civil Rights act, which, among many other things,
prohibited racial discrimination in places of public accommodation. In that
case, the owner of a take-out restaurant required African American customers to
be served at a separate entrance from white customers, which was prohibited
under the Civil Rights Act. The owner argued that the Act was unconstitutional
as applied to his restaurant, because the provision of food to individual
customers occurred in a single location, and did not cross state lines. The
Supreme Court disagreed, because the owner bought food and supplies in
interstate commerce, his restaurant could be regulated by the federal
government.
Similarly, even
though medical services are delivered in a discrete location, the medical
supplies and other goods directly involved in the provision of medical services
were likely purchased from other states, and thus medical service providers are
engaged in interstate commerce, allowing them to be regulated.
Of course, I don’t
pretend to know how a court would eventually rule on this matter, but I know
how I’d answer a constitutional law exam question that involved these facts.
Another
constitutional question is raised by a last-minute compromise that was reached
to give senate Democrats the crucial 60-vote supermajority they needed to
overcome a Republican filibuster. Because the Republicans have 40 seats in the
Senate, and the Democrats (and independents who caucus with them) have 60
seats, and Republicans were unanimously opposed to the Senate bill, every single
Democratic vote was needed, effectively giving every Democrat in the Senate
veto power over the bill.
Nebraska Senator Ben
Nelson, a Democrat who appears to occupy the more conservative wing of his
party, had serious reservations, and threatened to vote against cloture (ending
debate, and forcing a vote on the bill, which requires 60 votes), which would
have effectively torpedoed the measure.
To appease him, greater restrictions were placed on funding
for abortion (ostensibly his main issue with the bill), and a provision was
added under which the federal government would pay all of Nebraska’s new Medicaid costs, forever. This
“Nebraska
compromise” gives some constitutional scholars pause. No other state gets all
of its Medicaid costs paid for by the federal government, and this measure
effectively requires residents of the other 49 states to pay for the healthcare
of Nebraska
residents who are eligible for Medicaid.
This does not raise any obvious Commerce Clause issues, but
implicates Congress’ constitutional power to tax and spend for virtually any
purpose.
Congress certainly treats states differently from one
another all the time, when it comes to distributing money. On its face, this
provision does not seem to be any different.
Whatever the final result, we can be sure that lawyers will
be kept busy. Between the likely constitutional challenges to the law, and the
myriad new regulations it creates, lawyers for individuals, health insurance
companies, and employers will have their work cut out for them.
